DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II
Udyog Sadan, C-22 & 23, Qutub Institutional Area
(Behind Qutub Hotel), New Delhi- 110016
Case No.355/2011
Shri Ishaq Khan S/o Sh. Sardar Khan
H.N. 405, Mathura Road, Badarpur,
New Delhi
Through His Attorney Sh. Lalit Kumar ….Complainant
Versus
M/S TATA Motors Ltd.
26th Floor, Center No.1, World Trade Center,
Cuffe Parade, Mumbai- 40005
M/S TATA Motors Ltd.
Jeevan Tara Building, 5, Parliament Street,
New Delhi
M/S PASCOS
GT Karnal Road, Distt. Sonipat, Haryana
M/S Johar Motors
Main Mathura Road, Badarpur Border,
New Delhi- 110044 ….Opposite Party
Date of Institution : 28.09.2011
Date of Order : 01.02.2022
Coram:
Ms. Monika A Srivastava, President
Ms. Kiran Kaushal, Member
Sh. U.K. Tyagi, Member
ORDER
Member: Ms. Kiran Kaushal
- Facts of the case as pleaded by the Complainant are-
Shri Lalit Kumar Saini purchased the vehicle bearing Registration No. HR.38BN.3366 on 13.10.2005 from M/S PASCO Motors, GT Karnal Road,
Distt. Sonipat, Haryana (OP-3) against the cash cost price of Rs.7,92,000/-.OP1 and OP2 are the manufacturers of the vehicle in dispute.
- It is stated that Shri Lalit Kumar Saini is authorized and competent to file and sign this complaint and to do all other Acts connected with the above said matter as; he is fully conversant with the facts of the case. General Power of Attorney of Shri Lalit Kumar Saini is appended at page 90 of the complaint.
- It is alleged that OP-4 has failed to provide proper service of the said vehicle to the Complainant. There were various manufacturing defects in the said vehicle such as poor pick up and excessive consumption of diesel that is only three kms. per litre. The cost of the same was borne by the Complainant. It is stated that there were other manufacturing defects, which are described in the statement sheets prepared by OP-3, who is the authorized service center of OP-1 and OP-2. Every time the vehicle went to the service station, he was assured that the defects have been cured but the vehicle still carried those defects and on account of those defects Complainant had to spend huge money and suffer financial losses. The said vehicle had the warranty of eighteen months from the date of purchase and during the warranty period the vehicle was sent to various service centers of the OPs but no satisfactory service was provided by the OPs.
- It is stated that the Complainant had to change various parts of the vehicle, which include an RC Long Block on 16.10.2006 for which the Complainant had to pay Rs.51,563/- for replacement of this part alone. Replacement and repair of defective parts of the vehicle are supposed to be done free of charge, when the vehicle is still under warranty. It is further averred that Complainant had to spend total amount of Rs.93,987/- so far towards charges for replacement of parts, repairs and maintenance of the vehicle .
- Alleging deficiency of service on account of OPs Complainant has prayed for direction to OPs to pay Rs.8,00,000/- as compensation and also, to get the said vehicle replaced with the new one.
- OP-1 and OP-2 have filed a joint reply, resisting the complaint raising objection that the said vehicle is a commercial vehicle, which was purchased on 13.10.2005 and the present complaint has been filed in September, 2011 that is more than six years, which shows that the present complaint is barred by law of limitation. Further it is objected that Complainant has leveled misconceived and baseless allegations of manufacturing defect in the vehicle without providing any material particulars nor has he annexed any expert report from a recognized laboratory in support of the allegations made in the complaint. It is averred that on 19.02.2010 the vehicle had covered 2,77,530 kms., which itself speaks that the vehicle never had any latent or patent manufacturing defect as has been leveled by the Complainant.
- The next objection raised by OP-1 and OP-2 is that the Complainant is not a ‘Consumer’ as defined in Section 2(i)d of Consumer Protection Act, 1986. It is averred that the vehicle in question has been used for Commercial Activities in order to generate profit and has covered more than 2,77,530 kms. within span of approximately fifty-two months, which speaks about the extensive usage of the vehicle in question. In support of the said averment OP-1 and OP-2 has relied upon Cheema Engineering Services V/s Rajan Singh (1997) I SCC 131 and Laxmi Engineering Works V/s PSG Industries Institute (1995) II CPJ I (SC).
- It is further stated that for effective maintenance and better performance of the vehicle, every customer has to carry out the mandatory recommended services at specified service intervals but the Complainant had failed to carry out scheduled services of the vehicle as per the recommended service scheduled. In this regard OP-1 and OP-2 have relied on clause V of the terms and conditions of warranty, which states as under-
8.1 “The warranty shall not apply if the vehicle or any part thereof is repaired or altered otherwise than in accordance with our standard repair procedure, or by any person other than our sales or service establishments, our authorized dealers or their sub-dealers or service centres in any way so as, in our judgment which shall be final and binding, to affect its reliability, nor shall it apply if, in our opinion which shall be final and binding, the vehicle or part has been subjected to misuse, negligence, improper or inadequate maintenance and servicing or accident or loading in excess of the carrying capacity as certified by us or the services prescribed in Operator’s Services Booth are not carried out at our sales or services establishments, our authorize dealers or their sub-dealers or service centres.”
It is stated by OP-1 and OP-2 that in view of the improper maintenance and unscheduled servicing of the vehicle, the warranty ceases to exist.
- It is also submitted that whenever the vehicle was brought to them, the authorized service center of OP-1 and OP-2 provided their best and efficient service to the Complainant. The repairs were of minor nature and were
regarding servicing of the vehicle, which were duly carried out by the concerned dealer to the entire satisfaction of the Complainant. The charges levied for the parts were of consumable nature, which are not covered under warranty. However, though services which were covered under warranty were duly rendered free of cost to the Complainant.
It is therefore prayed that the complaint of the Complainant be dismissed in the interest of justice.
- OP-3 filed its written version stating that OP-3 is only an authorized dealer of OP-1. OP-3 only sells the vehicles manufactured by OP-1 and OP-2. The instant complaint is regarding the manufacturing defect of the vehicle; therefore, no cause of action has ever arisen against OP-3 hence, it is requested that OP-3 be deleted from the array of parties. It is further prayed that complaint be dismissed in the interest of justice.
- OP-4 filed their reply stating inter-alia that the complaint is time barred as the Complainant had sent a legal notice to OPs in December, 2006, so the cause of action arose in December, 2006 itself and the complaint should have been filed by 2008.
- It is stated by OP-4 that Shri Ishaq Khan transferred the said vehicle
on 23.10.2006 to Shri Lalit Kumar Saini, in violation of Section 50, 51 of the Motor Vehicles Act. The ordinary vehicle 1613 has been converted into S.K.1613 that is Tipper/Dumper, so there is violation of Section 52. The warranty of the vehicle has lapsed as the ownership of the vehicle has been changed. Secondly there has been modification in the vehicle as the ordinary vehicle has been changed into S.K. tipper/dumper without permission of the manufacturer, so as the warranty did not apply therefore its owner is liable to pay for the services of the vehicle. All such terms and conditions are clearly mentioned in the Operator’s service book of the vehicle itself exhibited as Exhibit R-4W-1/1.
- It is further submitted that OP-4 is an authorized workshop of OP-1 and OP-2 and it has serviced the vehicle to the satisfaction of the owner and has charged for its services and parts as per prescribed schedule. It is further submitted that Shri Lalit Kumar Saini has no right to file any complaint against OP-4 as he is not a registered owner of the vehicle. It is thus prayed that complaint of the Complainant be dismissed with cost.
- Rejoinder is filed on behalf of the Complainant reiterating the averments made in the complaint. Evidence by way of affidavit is filed on behalf of the Complainant and all the Opposite parties. Written arguments are filed on behalf of the parties. Argument on behalf of OP-1 and OP-2 are heard. Material placed on record is perused.
- After having gone through the file and having heard the learned counsel for OP-1 we are of the opinion that the instant complaint fails on various grounds:
15.1 Complainant purchased the said vehicle on 13.10.2005 and dissatisfied by the services of the OP, Complainant sent first legal notice to OPs on 05.12.2006, which is appended with the Complaint at page no. 35. Thereafter, Complainant sent another notice to OPs on 04.02.2008 appended at page no. 40 of the Complaint. This shows that the cause of action first arose in December, 2006 itself, whereas the Complainant has filed this complaint on 28.09.2011, which is after six years of arising of the cause of action. It is settled law that limitation cannot be extended by period notices or subsequent correspondence. As per Section (69) of the Consumer Protection Act, 2019, a complaint can be filed within two years from the date on which cause of action first arose, whereas the Complaint has been filed after six years so it is barred by limitation.
Since the case pertains to the year 2011, we will deal with merits as well
- On perusal of the record before us, we opine that the Complainant has not approached this Commission with clean hands as the Complainant, who is the owner of the vehicle had executed a General Power of Attorney dated 23.10.2006 in favor of Shri Lalit Kumar Saini, authorizing him to deal with the vehicle on behalf of the owner. OP-4 in its reply has very categorically stated that the Complainant, Shri Ishaq Khan has transferred the vehicle in question to Shri Lalit Kumar Saini and the ordinary vehicle 1613 has been converted into S.K.1613 that is tipper/dumper. Complainant has neither specifically denied both these fact, nor he has adduced any evidence to show his bonafide. In the absence of both it is presumed that the vehicle was sold to Shri Lalit Saini and he did not get the vehicle registered in his own name. Therefore, the Complainant ceases to be a ‘Consumer’ as he has already transferred the vehicle to Shri Lalit Saini. Admittedly, Shri Lalit Saini is not a registered owner.
- Another ground on which the complaint fails is that Complainant is not a ‘Consumer’ under Consumer Protection Act, 2019, as the said vehicle is a commercial vehicle as no where it is pleaded or proved that the said vehicle was used for the purpose of livelihood of the Complainant . Therefore, as per the Act, if any person has obtained goods for commercial purpose with the view to using the said goods for carrying on any activity of profit, other than exclusively for self employment, such person is excluded from the purview of the Consumer Protection Act, 2019.
- Further, it is hard to believe that the vehicle, which had run almost
2,77,530 by 19.02.2010 had any manufacturing defects. Had there been manufacturing defects then the vehicle would not have run that many kms. Though the Complainant has filed various job sheets, but in the absence of any expert evidence or expert opinion and also the vehicle having run for almost six years, we are unable to fathom that the vehicle had any manufacturing defect.
- Moreover, it is brought to our notice that the vehicle in dispute has been sold around five years back without the permission of the Commission. It is settled law that if the vehicle has been sold by the complainant during the pendency of the case, the complainant ceases to be a consumer
19.1 In Ramesh V/s M/s Skoda Auto India Pvt. Ltd. and Others NCDRC on 26.04.2019 held
19.2 We have held in RP No. 2562 of 2012, TATA Motors Ltd. and another V/s Hazoor Maharaj, Baba Des Raji Chela Baba, Baba Deva Singh Ji and another decided on 25.09.2013 that once vehicle is sold during pendency of the complaint Complainant does not remain Consumer for the purpose of Consumer Protection Act. In that Judgment, we have placed reliance on 1(2008) CPJ 249(NC) Hoshiarpur Improvement Trust V/s Major Amritlal Saini. In another judgment dated 23.04.2013 passed by this Commission in Appeal No. 466 of 2008. Mr. Rajiv Gulati V/s Authorized Signatory, M/s TATA Engineering and Locomotive Company Ltd. and others. As vehicle has been sold by the Complainant during pendency of appeal, which is filed in the year, 2007 and decided in the year, 2012, Complainant ceases to be a Consumer under Consumer Protection Act. And complaint is liable to be dismissed.
20. In view of the discussion above we dismiss the complaint being meritless and frivolous.
File be consigned to the record room after giving a copy of the order to the parties as per rules.
